CRI/A/3/2002
CR. 942/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOSOTHOANE
THAMAE

v

REX

For
Appellant : Mrs Majeng-Mpopo

For the
Crown : Miss L. Mahanetsa

Judgment

Delivered
by the Honourable Mr. Justice T. Monapathi on the 15th March 2002

This was
an appeal from the magistrate of Maseru. The Appellant (who was
unrepresented) was convicted on his own plea of attempted murder and
contrary to section 32(a) of the Internal Security (Arms and
Ammunition Act) 1966 (as amended) Appellant was accordingly sentenced
to 4 years without an option of a fine and 4 months or M200.00
respectfully for the two counts. I had noted that a plea of guilty
has always been regarded as a judicial confession. See Rantsoti
Nkhatho v Rex 1978 LLR 160.

I raised
my concern about whether the above sentences which were ordered

2

to run
consecutively were tenable or practical. See R v MATHABA 1989(1) LLR
83 where it was held that prison sentence in default of payment of a
fine not to run consecutively with the other sentence of
imprisonment.

This
Court found it difficult to entertain the additional grounds filed
only yesterday even if they may have been served on 13th March 2002.
This included the charge that the Appellant was never advised of his
rights as an unrepresented accused. Most magistrates seem to feel
that investigating whether an accused needs representation is a kind
of a privilege to be dispensed when it suits their fancy.

I had to
consider that as long ago as the 6th March 2002 when the matter was
postponed this provided ample time for the Appellant's Counsel to
have filed additional grounds of appeal timeously. Original grounds
of appeal had bee filed on 22nd August 2000. I wondered whether it
was appreciated by Appellant's Counsel that sufficient notice was of
essence in matters that needed preparation such as appeals before the
High Court.

The Court
noted its disapproval of the manner in which additional grounds 2 and
3 were recorded which was as follows:

"2 Evidence before Court failed to prove an offence of attempted
murder." And

"3 The learned (Judge) failed to consider the element of
self-defence.

I thought
it was imperative that facts upon which the grounds of appeal are
premised must be stated.

3

As for
the complainant contained in the submission that the evidence in the
Public Prosecutor's outline (in terms of section 240 (1) (b) of the
Criminal Procedure And Evidence Act 1980) did not disclose all the
elements of the offence or that the Appellant's admission of the
facts elicited by the public prosecutor was not unequivocal. I
thought it was intimated well in advance on the 6th March 2002. I
considered therefore that this could be taken as included in the
above defective grounds as inelegantly as they had been put.

The Court
record read at page 2:

Accused
accepts all the facts as outlined by the public prosecutor and
informs that Tlelima just pounced on and hit him. They were about
five people hitting me I managed to (shot) Tlelima. A friend of mine
left the rifle with me." (My emphasis) It was on the basis of
the statement that Appellant's submission was made.

After
hearing argument the appeal was allowed in that the outline did not
disclose an offence. Furthermore that at the end of the statement
what was revealed showed that the admission of guilt was not
unequivocal. See Rantsoti Nkhato v Rex (supra) and R v Matjola 1977
LLR 1.

As Crown
Counsel correctly conceded a defence in the nature of self-defence
could have been intended to have been pleaded as was suggested by the
Appellant in his statement. The Learned magistrate should have
accordingly returned a plea of "not guilty" in the
circumstances.

Appellant
is to be tried de novo before another magistrate. Conditions

4

relating
to bail are to revert and remands are to resume until the matter is
finalized.

Appeal
fee is to be refunded to Appellant.

T.
Monapathi

Judge

15th
March 2002